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2019 DIGILAW 1046 (ALL)

Pan Singh @ Nanhey v. State of U. P.

2019-04-23

SIDDHARTH

body2019
JUDGMENT : 1. Heard Shri Noor Mohammad, learned counsel for the appellant and learned A.G.A. for the State. 2. This criminal appeal has been preferred against the judgment and order dated 5.8.2015 passed by the Additional Sessions Judge, F.T.C., Kasganj in S.T. No. 159 of 2011 convicting the appellant under section 376 I.P.C. and directing him to undergo rigorous imprisonment of seven years along with fine of Rs. 10,000/-. On failure to deposit the fine to undergo three months additional simple imprisonment. 3. The prosecution case, in short, is that informant Shanker Lal gave an application dated 16.2.2011 at police station stating that at 12.30 in the night his daughter (hereinafter referrer to as 'victim') had gone to ease herself in the field where Pan Singh, the appellant, on gun point caught her and took her in his house. After some time he awoke and found that his daughter is not on her cot. When after sometime she did not came back he went to his wife and after awaking her went in her search. He informed the members of his family and people of the locality. On the basis of suspicion he went to the house of the appellant along with family members and found that his room was locked. When he along with Vinod, Raghubir and Ramesh and his wife asked him to open the door he did not opened the same but when they persisted he scaled the wall of his house after opening the door with pistol in his hand and ran away. In the room his daughter was found who informed that when she was going to ease herself, Pan Singh threatened her on pistol point and after bringing her to his room forcibly raped her. The aforesaid application was registered as case crime no. 45 of 2011 at P.S. Shirpura, District Kasganj. The investigating Officer conducted the investigation and submitted charge sheet. 4. The trial court charged the appellant for offence under section 376 I.P.C. which he denied and sought trial. 5. P.W.1 Shankar Lal, the informant, repeated the allegations made in the First Information Report. In his cross-examination he stated that the name of the father of the appellant, Pan Singh, is Umrao. The appellant has three brothers. His brothers are married and have children. 5. P.W.1 Shankar Lal, the informant, repeated the allegations made in the First Information Report. In his cross-examination he stated that the name of the father of the appellant, Pan Singh, is Umrao. The appellant has three brothers. His brothers are married and have children. He went in search of the victim at 12.30 -1 a.m. alongwith his brother Virendra, Narendra, his wife and others. He mentioned the name of the Vinod, Ramesh and Rghubir in the First Information Report. There were about 8-10 persons, who went in search of his daughter along with him. Firstly they went to the field, thereafter to the temple and then lanes of the locality of the village. The places were victim went to ease herself was 200-300 meters away from his house. She had gone after telling her mother. He or his family members have no dispute with Pan Singh. They reached the house of the appellant after about one hour. When Pan Singh did not came out of his house for the first time they went to other places for search of the victim. When they went to his house again he opened the door with country made pistol in his hand and after scaling his boundary wall ran away. They suspected Pan Singh because “Shawal” and “water mug” taken by her daughter was found out side his house. The victim was recovered on the bed in his house. Her clothes were blood stained and blood was also there on the bed. He and his wife picked up the victim and brought her to the house. His clothes and his wife clothes were also soiled. They reached the police station at 7 A.M. and wrote application there at about 7.30 A.M. The police had come in the village at 12-1 A.M. Police was shown the room of Pan Singh. Inspector took away the clothes and undergarments of the victim and also portion of the bed sheet of Pan Singh having blood stains. He denied that his daughter was above eighteen years of age at the time of incident and also denied that he knows the name of the wife of Pan Singh or his sister –in-law. 6. P.W.2, Smt. Sunita Devi, mother of the victim, stated that when they knocked the door of Pan Singh he did not opened the same and opened the same later. 6. P.W.2, Smt. Sunita Devi, mother of the victim, stated that when they knocked the door of Pan Singh he did not opened the same and opened the same later. He had pistol in his hand and he ran away after scaling his wall. In the room she found her daughter lying on the bed unconscious. She brought her in lap to her house where she narrated the entire incident as it took place. She admitted that appellant is married having four children but on the date of incident his wife and children had gone to the house of the in-laws. When she entered into the house of Pan Singh she found her daughter alone. She denied that she gave such statement to the Inspector that on the date of incident children of the appellant were in the house. She further denied that she gave any statement that her daughter was returning after easing herself and not that she was going to ease herself when the incident took place. The victim regained consciousness after about half an hour. She did not took the victim to any doctor. She admitted that name of the wife of Pan Singh is Phool Sri but denied that she had any relationship with Pan Singh. 7. P.W.3, victim, admitted in her examination-in-chief that on 16.2.2011 at about 12.30 at night she suffered pain in the stomach and went to ease herself after telling her mother. She asked her mother to accompany her but she was not feeling well, therefore, she asked her to go to the near by field. While she was going, she saw the appellant standing at the door of his house. He is her neighbour and she knows him well. He caught her and after pointing county made pistol took her inside his room. His wife not in the room and on the double bed two children aged about 2-3 years were sleeping. When she screamed he forced cloth in her mouth and despite her protest committed rape on her on the gun point. She became unconscious and later gained consciousness. When she did not reached her home her parents started searching her and after one and half hours they reached doors of Pan Singh. After Pan Singh pulled her forcibly her “Shawal” and “Mug” fell down. She became unconscious and later gained consciousness. When she did not reached her home her parents started searching her and after one and half hours they reached doors of Pan Singh. After Pan Singh pulled her forcibly her “Shawal” and “Mug” fell down. She was taken from the room of Pansingh by her father in the state of semi-consciousness in his lap. She identified the appellant in the court and proved that she was medically examined by the doctor on 17.2.2011. 8. In her cross examination she admitted that she is student of B.A. Her house is adjacent to the house of appellant and is about twenty steps away. The road passes between their houses in the east-west direction. The field where she went to ease herself is towards west of her house and field is about 200 meters from her house. When she had left house, her mother was awake. Pan Singh was standing at the door of his house before she left her house it was about 12-1 A.M. in the night. She was caught by Pan Singh after 1-2 minutes after leaving her house. She screamed but her mother did not came out since Pan Singh has closed her mouth by his hand. Where her mother was lying and where Pan Singh caught her, distance was about 15-20 steps. Her mouth was closed by clothes. She had “Shawal” and “Mug” which had fallen on the door of Pan Singh. She was never at visiting terms with Pan Singh and never went to his house earlier. She has suffered injuries on back and her elbows and her clothes were also torn. She further stated that on the next day she went to the police station along with her parents at 6 a.m. and admitted that probably they came back at 11-12 P.M. When she went to the police station she was wearing same cloths being three in numbers. If the inspector noted only two clothes in her statement under section 161 Cr.P.C. she cannot tell the reason. 9. P.W. 4, Dr. P. Prasad, found one abrasion 7x5 cm. 2 cm above the wrist of the victim and another abrasion 3x5 cm. on her chest 1 cm. below the clavicle bone. Duration of both the injuries were found of about twelve hours before. 9. P.W. 4, Dr. P. Prasad, found one abrasion 7x5 cm. 2 cm above the wrist of the victim and another abrasion 3x5 cm. on her chest 1 cm. below the clavicle bone. Duration of both the injuries were found of about twelve hours before. In the internal examination of victim, he found her hymen old torn and did not found any injury on her private parts. He admitted that he sent slide of vaginal smear for pathological examination. The age of the victim was found to be 17-18 years from the medical report. 10. P.W. 5, Sub-Inspector Ram Mohan, proved record of the investigation conducted by him along with charge sheet submitted before the court. 11. P.W.6 Dr. Rajendera radiologist proved that he performed the X-ray of joints of victim. 12. P.W.7. Dr. Shaheed Mohammad proved his report of vaginal smear of the victim and stated that no spermatozoa was found therein. 13. The statement of the appellant was recorded under section 313 Cr.P.C. wherein he denied commission of any offence and stated that has been falsely implicated in the offence on account of enmity. 14. Wife of appellant Phool Sri was examined as D.W. 1 before the court below. She stated that on 16.2.2011 dispute had taken place between her son Ravi with the brother of the victim, and thereafter altercation took place between her and mother of the victim. She was threatened by informant that he will teach her lesson. She had also gone to lodge her report but the report was not registered while the report of the informant was registered and the appellant has been falsely implicated. 15. In her cross examination she stated that appellant Pan Singh is her husband and the informant Shanker Lal is her Mama's son. She admitted that she sent the information regarding the incident to the Superintendent of Police on 17.2.2011She denied that she is protecting her husband. 16. The trial court has reached the conclusion that age of the victim was fifteen years on the basis of some transfer certificate of the school. The court below has also relied upon section 114-B of the Evidence Act and has held that the presumption is in favour of the victim and appellant has failed to prove that there was consent on the part of the victim. The court below has convicted the appellant treating the victim as minor. 17. The court below has also relied upon section 114-B of the Evidence Act and has held that the presumption is in favour of the victim and appellant has failed to prove that there was consent on the part of the victim. The court below has convicted the appellant treating the victim as minor. 17. A perusal of the record shows that P.W.4 Doctor, did not found any mark of injury on private part of victim and from the report of Pathology no spermatozoa was found in her vaginal smear. The court below has recorded the finding regarding age of the victim as fifteen years relying upon a transfer certificate. The transfer certificate relied upon by the court below was not proved before the court in accordance with law. From the report of the radiologist the age of the victim was found above seventeen years and below eighteen years and she was also found to be student of B.A. 18. A student of B.A. cannot be accepted to be aged only fifteen years normally. Considering the report of radiologist the age of the victim could be more or less by two years on either side of 17-18 years and from the report of the doctor she appears to be major.It is true that court below found semen stains on the undergarments of the victim but no D.N.A. test was conducted to match the D.N.A. profile of spertomoza on the undergarments of the victim with that of the appellant. 19. The P.W.1, father of the victim, has stated that victim was lying in pool of blood when he discovered her from the house of the appellant even part of the blood sheet bearing blood stains was taken by the police for evidence but no report regarding blood found on the bed sheet was submitted. It is notable that P.W.2, mother of the victim, has not stated a word about the blood on the private part of the victim nor on the bed sheet. If the statement of P.W.1 is compared with her medical report she was not virgin at the time of incident and was found to be used to intercourse. Therefore statement of P.W.1 cannot be accepted to be true. Even P.W.3, victim, has not alleged that any blood was coming from her private part on account of rape committed by the appellant. Therefore statement of P.W.1 cannot be accepted to be true. Even P.W.3, victim, has not alleged that any blood was coming from her private part on account of rape committed by the appellant. She only stated that she was semiconscious and was brought by her father in his lap therefore prosecution evidence is not absolutely reliable and the statement of the victim cannot be accepted as sole basis of conviction of appellant. 20. P.W.4, Dr. P. Prasad during his cross examination admitted that victim was found to be used to intercourse and no spermatozoa was found in the vaginal smear. 21. The court below has relied upon section 114-A of Evidence Act but in the present case there is no defence that it was a case of consent rather defence of the case is that it is the case of false implication, therefore, reliance upon section 114-A of Evidence Act by the court below was misconceived. 22. In the present case it is also notable that in the First Information Report informant stated that Vinod, Raghubir and Ramesh got doors of appellant opened but none of them was produced as witnesses before the court. 23. In the statement before the court the informant stated that his brother Virendra, Narendra and his wife and other persons went in search of the victim. 24. No independent witness was produced to prove that victim was recovered from the house of the appellant in his presence. P.W.2 has admitted that the appellant is cousin of the informant and therefore possibility of some internecine dispute between them cannot be ruled out. it is true that conviction of the accused only on the testimony of the victim can not be made, provided it inspires the confidence of the court. The victim stated that there were two children sleeping on bed in the house of the appellant where she was raped but her mother, P.W.2 stated that at the time of incident the wife and children of appellant had gone to his wife's parents' place. Therefore there is contradiction in the statements of P.W.2 and P.W.3. 25. The finding of the court below that no woman would make the allegation of rape against anyone putting her reputation to stake without there being justifiable reason and reliance upon the some judgments of the Apex Court in this regard is not attracted to the facts of the present case. 25. The finding of the court below that no woman would make the allegation of rape against anyone putting her reputation to stake without there being justifiable reason and reliance upon the some judgments of the Apex Court in this regard is not attracted to the facts of the present case. The Apex Court has cautioned the court in this regard in paragraph 21 in the case of Md. Ali @ Guddu (supra) had held:- 21. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without re-appreciating the material on record, by giving the stamp of approval to the same. 26. This court in the case of Bhoora Yadav and Ors. Vs. State of U.P., MANU/UP/0186/2016 has held accordingly in paragraphs 10 and 11:- "10. Generally, in cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions are insignificant. Discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu Vs. State of Maharashtra, AIR 2006 SC 508 . 11. The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her persons even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & others Vs. State of Maharashtra, (1999) 1 SCC 220 ." 28. This Court is also not unmindful of the observations made by the Apex Court in Sadashiv Ramrao Hadbe v. State of Maharashtra MANU/SC/0607/2006: (2006) 10 SCC 92 , wherein it has been observed that it is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the Court and if the version given by the prosecutrix is supported by medical evidence and the whole surrounding circumstances makes the case set up by the prosecutrix highly probable and believable. Therein it is also observed that the Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. Considering the questionable propensity of the prosecutrix, I am tempted to refer to the case of Moinul Hoque and Ors. v. State of Assam (2001) 1 GLR 516. In paragraph 16 of the judgment it is held as under : "It is true that a Court has to take seriously the cases relating to violence against woman. Simultaneously, the Court has a duty to guard itself against false charges of rape. v. State of Assam (2001) 1 GLR 516. In paragraph 16 of the judgment it is held as under : "It is true that a Court has to take seriously the cases relating to violence against woman. Simultaneously, the Court has a duty to guard itself against false charges of rape. The narration of the prosecution case is full of vital omissions and contradictions and it raises strong doubt which over-shadows the genesis of the prosecution case. In my opinion, it would be unsafe to sustain the conviction in this case relying upon the testimony of the prosecutrix alone. Dignity of woman will have to be protected, but without aid of emotion. This is undoubtedly not a case where the prosecutrix has the last 'say'." 27. Keeping in view the overall facts and circumstances of the case, it is found that not only the victim but the entire prosecution has failed to prove the case against the appellant beyond doubt and conviction of the appellant was not justified on the basis of evidence on record. The appellant is in jail he is directed to be released from jail forthwith if not wanted in any other case. 28. The judgment and order of the trial court is hereby set aside. The record of the trial court is directed to be sent back within a period of one week along with copy of the judgment for compliance. The appeal is allowed.